| Perspectives on Texas

The developments in immigration law over the last few weeks have been dizzying. But while the Trump administration’s actions may seem unpredictable and random, its recent legal and policy changes are in fact part of a deliberate and coordinated attack on immigrant women and children. The shift from family separation to family detention does not exist in a vacuum — it is inexorably linked with the decision to limit the right of survivors of domestic violence to claim asylum in the United States.

In April, Attorney General Jeff Sessions instituted a zero-tolerance policy for immigration violations, meaning that anyone caught trying to enter the U.S., including those seeking asylum, would face criminal prosecution. Because the administration decided it could not incarcerate children with their parents, more than 2,000 minors were separated from their families; many remain unaccounted for.

Photos of children in cages and audio of them wailing while ICE/CBP agents mocked them soon went viral. Politicians from both parties expressed outrage at immigration authorities’ lack of empathy and the inhumane conditions to which they were subjecting minors. Members of Congress demanded access to the detention camps, the UN condemned the policy as “government sanctioned child abuse” and the ACLU filed suit.

After a slew of inconsistent statements shifting the blame from his administration, President Trump issued an executive order claiming to end family separation. The order requires the Department of Homeland Security (DHS) to maintain custody of families “during the pendency of any criminal… or immigration proceedings.” While a minor improvement from family separation, the order provides a foundation for indefinite detention of mothers and their children.

Let us be clear, these families — nearly all of whom are fleeing unspeakable violence in their home countries — will be in jail. And although children will now be with their mothers (fathers are held in separate facilities) their treatment will not be substantially improved. In DHS family detention centers, freedom of movement is restricted. Detainees are told when to eat, sleep and wake. Middle of the night bed-checks wake children from their slumber. Even play is regulated. Basic toys such as crayons are contraband. The “visitation room” at the Karnes Family Immigration Detention Center in southeast Texas, where I led a group of volunteer SMU law students in the spring of 2017, has a roughly 9’x11’ rug on which all toys are required to remain. We regularly witnessed guards discipline children whose toys strayed from the boundaries of the carpet.

These detention centers are where women and their children will be held while they undergo “credible fear screening” — the first of many steps required to claim asylum in the United States. Because establishing credible fear requires an applicant to demonstrate that there is a “significant possibility” that she could ultimately establish eligibility for asylum, Sessions’ June 11th decision in the case of Matter of A.B. will pose grave challenges for the many survivors of domestic violence in detention. In that case, Sessions claimed that survivors of intimate partner abuse have not faced persecution on account of their membership in a “particular social group,” and are therefore ineligible for asylum protection.

As a result of Trump’s executive order, women fleeing domestic violence will be incarcerated as they undergo interviews, file appeals, and attempt to make their case to immigration judges. And Matter of A.B. means they now have a significantly lower likelihood of success, especially because most will proceed without legal representation. Thus, after enduring the trauma of detention, many women and children will likely be deported, forced to return to the life-threatening circumstances from which they fled.

Our president has long engaged in reprehensible conduct towards women. He has advanced policies that endanger women’s health and dismantle reproductive rights, defended members of his administration accused of intimate partner abuse and engaged in both verbal and alleged sexual violence towards women himself. His hostility towards the immigrant community is also well documented. Trump’s actions in recent weeks are one more battle in his ongoing war against immigrant women and children.

SMU Law students Claire Cahoon, Mack Fitzgerald and Ali Siller assisted in drafting this article.

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